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August 31, 2005

The following is from an article I did for the Illinois Bar Journal titled "Five Steps Towards Persuasive Writing." It's step two, maintain your credibility, and I was reminded of it this morning as I was outlining a memorandum in opposition to an opponent's motion:

The court will respond more favorably to your arguments if they think you are fair-minded and wise. The basic rules are easy. Present a cogent legal argument. Don't misstate the facts or the law. Be thorough in your research. Always cite-check your case citations.

Your credibility is also influenced by how seriously you take the arguments advanced by your opponent. Any legal brief or memo that fails to address every point made by the other side is inherently flawed. It's a rule that's often violated, especially when we're rushed.

What about concessions? It's often strategically wise—and an automatic credibility-booster—to state your opponent is right on points that don't matter to the end result. Why do so many lawyers feel compelled to defend indefensible positions that aren't material? Point out other reasons why you should win anyway.

Credibility also has a stylistic component. A common problem is overstatement, which will make the reader question every other forceful statement you make. Example: Defendant contends Smith v. Jones is distinguishable, but nothing could be further from the truth.

August 29, 2005

Here is a checklist you can use to insure you've chosen scientific experts whose backgrounds will help you withstand challenges based on Daubert and Frye:

Does your expert have strong academic credentials? Is he recognized by his peers as someone who stands out--someone who has received awards, appointments, and other honors and distinctions?

Does he have actual working experience with the precise issue or issues about which he will be testifying?

Have you done your own independent research into your expert? Since your opponent might attempt to verify every claim on his C.V., you should too.

Have you attempted to find everything written by or about your expert to see if any of it will be inconsistent with his testimony? Have you asked him for his previous depositions? Have you looked for them yourself?

Have you tested the quality of your expert's written work to see whether it was peer-reviewed and appeared in reputable publications?

Have you run a Lexis/Nexis search on your expert to see what you can find?

Is your expert someone who will be able to communicate complex subjects to a jury?

Does the expert have time to talk to you?

Many of these tips can also be used to investigate your opponent's experts as you prepare to take their deposition. Source note: The format and contents of this post were suggested by a paper presented by Vance Andrus, Richard Arsenault, and Donald Marks, M.D., at a Mealey's litigation conference.

August 26, 2005

Under Illinois law, is it permissible to cross-examine an expert with documents that contain hearsay?

In short, yes. While there are limitations, an expert can be cross-examined with reports or records that he used to form his opinion even if these documents might otherwise constitute hearsay. Moreover, it does not matter whether the expert relied on these reports and records in reaching his opinion or merely reviewed them. See, e.g., Jager v. Libretti, 652 N.E.2d 1120 (1st Dist. 1995).

In some cases, an expert can be cross-examined even with reports and records that he did not review. A court will not allow this, however, if the “impeachment” of the expert is done in a way that indicates it is merely an attempt to get otherwise inadmissible hearsay evidence in front of the jury.

In Jager, the court gave two illustrations of this rule, representing both the right and wrong ways.

August 24, 2005

A lawyer I frequently practice with offers this tip. In trials with hundreds of exhibits, the jury will understandably have a difficult time sorting them out during deliberation and might even ignore them entirely. If you want to make sure they see the ones you consider most important, gather these into a stack and hold them up during your closing arguments. Tell the jury something like this: "Here are the the exhibit we think are the most important. I'm going to set them here on the rail. If you want to look at them later, ask for the stack of exhibits I set on the rail."

If you know the trial judge is going to send all the exhibits with the jury to the deliberation room, modify the procedure accordingly.

August 22, 2005

One of the problems with assigning the task of abstracting a deposition to a lawyer or paralegal who is not familiar with the case is that you'll often end up with a page-by-page recounting of the deposition testimony that, though shortened somewhat, still contains way too much information in a way that remains hard to skim. It's one of the reasons why, when time permits, I'd rather abstract depositions myself.

However, I don't arrange the abstracts page-by-page. Instead, I do it by topic or issue. For example, in a recent overtime case seeking overtime for a class of insurance adjusters, my deposition abstracts were organized by issue, with headings such as job duties of insurance adjusters, use of discretion and independent judgment, company structure, numerosity, common questions of fact and law, and so on. I then copy-and-pasted the witness's most important deposition testimony to the issue outline with a page citation.

When the same case issues are used for abstracting every deposition in a case, it makes finding pertinent information a breeze. And if you use software like CaseMap, it's possible to view deposition summaries both page-by-page or by issue, changing between the views with a click of the mouse.

August 19, 2005

The groundwork for the use of exhibits at trial should happen long before the trial begins. For all of your trial exhibits, think about authentication, the hearsay rule, and the best evidence rule. Try to establish the foundational elements required for your exhibits before trial by stipulation, with the use of requests for admission, or during evidence depositions. Since these foundational elements depend on the nature of the exhibit and what you are using it for, you'll have to do further research on what the precise elements for each exhibit actually are.

Once you're at trial, there is no strict requirement that documents, if otherwise admissible, must be sponsored by a particular witness. As a practical matter, however, your documents will almost always come in through your trial witnesses. After the exhibit is marked and a copy has been provided to the judge and the opposing counsel, proceed like this:

Mr. Witness, I'm handing you what's been marked Exhibit 10 for identification. Have you seen this before?

At this point, if the foundational elements have not been stipulated to by your opponent, you will ask the witness questions to establish the foundation, then say--

The Defendant offers Exhibit 10.

The judge will ask if there are any objections. If so, you can state your position and the judge make a ruling. If not, the judge will admit the exhibit. After that, you can use it in further questioning.

August 18, 2005

I have a post about today's ruling in Avery v. State Farm at Legal Underground. If you want to skip the background, the court's summary of its decision in Avery v. State Farm sums it up well: "All of the awards made by the circuit court now stand reversed."

August 17, 2005

A corporate-designee notice under the procedures of Fed. R. Civ. P. 30(b)(6) or a state-court equivalent requires your opponent, if a corporation, to produce someone with knowledge to testify about whatever topics you list in your notice. It's a powerful discovery tool that I use in almost every case. For example, in "Discovery: Cut Out the Middleman," I wrote about the use of corporate-designee depositions as a substitute for interrogatories. And in "Discovery Concerning the Parameters of Electronic Information," I wrote about using the corporate-designee procedure as a part of electronic discovery.

In this post, I'll include a sample corporate-designee notice from one of my old cases. It can't be used verbatim, of course, but it illustrates the sort of information that can be discovered by using such a notice. It's based on Illinois Rule 206(a)(1), which states--

(1) Representative Deponent. A party may in the notice and in a subpoena, if required, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. The subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

August 15, 2005

I've been thinking a lot lately about the poor job many attorneys do of limiting themselves to legitimate arguments on behalf of the client, as opposed to the "kitchen sink" approach I encountered quite a bit in practice. If, someday, I have the opportunity to teach an ethics course in law school, I think I'll dedicate at least one class to the practical question of distinguishing between zealous advocacy and shameless idiocy.

The post continues with a list of six rules to use to determine if a lawyer has crossed the line from advocacy to idiocy. It's well worth a read.

In practice, I think the Sardonic Lawyer's rules are most often violated when lawyers write briefs. It frequently happens, for example, when a low-level associate does a draft of a memorandum that necessarily includes every conceivable point, and then turns it in to a superior who has insufficient time for editing.

It also happens when lawyers don't want to let go of an argument because they think they might need it on appeal. This raises two other issues: Why preserve a weak argument? And is it necessarily waived if not included in a trial-level brief? Often that's not the case.

August 12, 2005

It's sounds crazy, but each year, scores of new lawyers experience unnecessary angst when they sit down with their detailed outlines for their first depositions and realize they've forgotten exactly how to get started.

It's something that's just not covered in the standard textbooks on depositions. Weblogs, however, are another matter. So let's back up a bit and take it from the beginning, step by step:

After picking a date for the deposition, hopefully with input from the other side, it will be formalized with a deposition notice.

Since it's your deposition, you will be responsible for making sure there's a court reporter present. Most secretaries will keep you from forgetting to get a court reporter, which is a good thing--it's quite embarrassing when it happens. Some lawyers even carbon copy the court reporting service on the notice itself, which is a useful tip to remember.

On the day of the deposition, arrive early and stake out your ground. The court reporter will sit at the head of the table, just like your father used to do at dinner. You'll sit to his right or left--it's your choice. The witness will sit directly across from you.

If the court reporter is there already and you are waiting for the witness or the other lawyer, you can have the court reporter pre-mark your deposition exhibits.

Once everyone is assembled, it's your chance to shine. Begin the deposition with two simple phrases: "Is everyone ready?" followed by, to the court reporter, "Go ahead and swear the witness."

At this point, the court reporter will administer an oath to the deponent. After that, you can dig into your outline with the standard opening question, "Please state your name for the record," or, if you want to sound like an old pro, "Tell us your name, please."

If this is all too much to remember, it will put your mind at ease to know that even if you forget how to start a deposition, the court reporter won't. He'll see you piddling around with your papers and will ask, "Should I swear the witness?"

It's a long way of saying that you never really needed these instructions in the first place. So relax and take a deep breath: you'll do just fine.